EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 23 Commission approved revisions to its Compliance Manual Section on Religious Discrimination. 148 In addition to direction on religious discrimination and accommodation, the guidance also includes sections addressing religious organizations, the ministerial exception to Title VII, First Amendment protections to employers, and protections under the federal Religious Freedom Restoration Act (“RFRA”). The Commission’s focus on such areas appears in part to be a reaction to the U.S. Supreme Court’s Bostock decision, as the introduction to the updated guidance specifically refers to the Court’s language in the opinion on religious liberty. 149 The potential conflict between Bostock and the RFRA came to a dramatic head in Bear Creek Bible Church v. EEOC . 150 The plaintiffs in this case were a nondenominational Christian Church and a for-profit Christian institution who argued that they were protected from complying with LGBTQ anti-discrimination provisions due to their sincerely held religious beliefs. The court first held that the church was exempt from Title VII . 151 Finding that the institution did not qualify for Title VII’s statutory exemption, the court examined whether it was nevertheless protected by the RFRA, that is, whether Title VII would substantially burden its sincere exercise of religion, and whether Title VII substantially burdens the institution’s ability to conduct business in accordance with those beliefs. The court first concluded that there was “no dispute” that “[the institution] sincerely exercises its religious beliefs as embodied in its employment policies. ” 152 The court then considered whether plaintiff satisfied the test for establishing a substantial burden – i.e. , that it “(1) identif[ed] the religious exercise; (2) allege[d] that the challenged law pressures plaintiff to modify that exercise; and (3) show[ed] that the penalty for noncompliance is substantial. ” 153 The court concluded that the institution met this test, holding that the first element was not disputed and “[f]or the second, the religious employers are required to choose between two untenable alternatives: either (1) violate Title VII and obey their convictions or (2) obey Title VII and violate their convictions.” 154 Since plaintiffs established a “substantial burden,” defendants were required to show that the “substantial burden is justified by a compelling interest and that they have chosen the least restrictive means of advancing that interest.” 155 The court found the defendants’ “overly broad formulation of its compelling interest” – that the government has a compelling interest “in eradicating workplace discrimination” – to be without merit . 156 Rather than relying on broadly formulated interests, courts must scrutinize the “asserted harm of granting specific exemptions to particular claimants”; the relevant question is “whether the government has a compelling interest in denying employers like [the institution] a religious exemption. ” 157 Further, the court held that “[f]orcing a religious employer to hire, retain, and accommodate employees who conduct themselves contrary to the employer’s views regarding homosexuality and gender identity is not the least restrictive means of promoting that interest, especially when Defendants are willing to make exceptions to Title VII for secular purposes.” 158 Accordingly, the court granted summary judgment to the plaintiffs as to their RFRA claim. believer’s] own scheme of things, religious.” Id. at 394. 147 Under that rubric, the court found that Onionhead was a religion under Title VII. Id. at 398. 148 Press Release, Equal Employment Opportunity Commission, Commission Approves Revised Enforcement Guidance on Religious Discrimination (Jan. 15, 2021), available at https://www.eeoc.gov/newsroom/commission-approves-revised-enforcement- guidance-religious-discrimination. 149 U.S. Equal Employment Opportunity Commission, EEOC Compliance Manual Section 12: Religious Discrimination at n.2 (2021). 150 Bear Creek Bible Church v. EEOC , No. 4:18-CV-00824, 2021 WL 5449038 (N.D. Tex. Nov. 22, 2021). 151 Id. at *23. 152 Id. 153 Id. (citing Eastern Texas Baptist University v. Burwell , 793 F.3d 449, 456 (5th Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell , 578 U.S. 403, and cert. granted, judgment vacated sub nom. Univ. of Dall. v. Burwell , 578 U.S. 969 (2016)). 154 Id. As to the third element, the court found that the “penalty for non-compliance would be EEOC enforcement, which would subject Braidwood to liability for backpay, compensatory damages, and punitive damages.” Id. 155 Id. 156 Id. 157 Id. (emphasis in original). 158 Id. On this same basis, the court granted summary judgment as to plaintiffs’ First Amendment claim, applying strict scrutiny to the analysis since “Title VII is not a generally applicable statute to the existence of individualized exemptions.” Id. at *26. The court held that the defendants’ “broadly formulated government interests” were insufficient to withstand First Amendment challenge. Id. The